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oCciaxdng 



OHIO STATK BAR ASSOCIATION. 


As to the judicial, they provide, Article 3, Section i : The judicial 
po-wers of the United States shall be vested in one Supreme Court, and in 
such inferior courts as the congress may from time to time ordain and 
establish. The Judges, both of the Supreme and inferior Courts, shall 
hold their o^ces during good behavior, and shall, at stated times, receive 
for their services a compensation, which shall not be diminished during 
their continuance in office. 

Section 2 extended the judicial power to all cases in law and equity, 
arising under this constitution, the laws of the United States, and all 
treaties made, or which shall be made, under this authority ; to all cases 
affecting ambassadors and other public ministers and consuls; to all cases 
of admiralty and maritime jurisdiction ; to all controversies to which the 
United States shall be a party; to controversies between two or more 
States; between a State and citizens of another State ; between citizens 
of different States; between citizens of the same State claiming lands 
under grants of different States, and between a State or the citizens 
thereof and foreign States,/citizens or subjects. In all cases affecting 
ambassadors, other public ministers or consuls^and those to which a State 
shall be a party, the^Supreme Court shall Jiave original jurisdiction ; in 
all cases mentioned, appellate jurisdiction, both as to law and facts, with 
such exceptions and under ^uch regulations as congress shall make. 
The trial of crimes (excep/ in cases of impeachment) to be by jury, and 
to be held in the State where committed, but when not committed within 
a State, in such place as congress may by law direct. 

The plan of judicial power was reported to the convention by a 
committee cf five of the most able lawyers of that body—John Rutledge, 
of South Carolina; Edmund Randolph, of Virginia; Nathaniel Gorham, 
of Massachusetts; Oliver Ellsworth, of Connecticut; and James Wilson, 
of Pennsylvania, and it was adopted as part of the constitution. To 
carry this constitutional provision into effect, the Senate of the Congress 
under the constitution, on the 7ih of April, 1789, appointed Messrs. 
Ellsworth, Patterson, Maclay, Strong, Lee, Bassett, Few and Wingate a 
committee “ to bring in a bill for organizing the Judiciary of the United 
States,” and on the 12th of June, 1789, Mr. Lee, on behalf of the commit¬ 
tee, reported a bill which was read a first time, and Monday, June 27, 
assigned for a second reading. The consideration of the bill on its sec¬ 
ond reading occupied the Senate daily until and including the 3d of July, 
and on the 6th it was ordered to a third reading, on which the discussion 
lasted six days, and finally, on the 13th, after various amendments, it 
passed that body by yeas 14, and nays 6. 

In the House the bill had its first and second reading July 20. After 
various discussions for a number of days, and continuous from time to 






IfNrri'.D S'l'A'I'ES SUl'kEMK COURT. 


3 


time, with various amendments, it was passed by the House on the 17th 
of September, 1789, The bill as amended was returned to the Senate, 
sundry of them being disagreed to, and subsequently the House acceded, 
and the bill became a law. The act provided for six Judges—a Chief 
justice and five associates—the salary of the Chief Justice at $4,000 per 
annum, and that of the associates at $3,500. 

This act was approved by President Washington on the 24th of Sep¬ 
tember, 1789, and on the same day he sent to the Senate the name of 
John Jay, of New York, for Chief Justice, and for associates, John Rut¬ 
ledge, of South Carolina ; William Cushing, of Massachusetts; Robert 
H. Harrison, of Maryland; James Wilson, of Pennsylvania, and John 
Blair, of Virginia, who were unanimously confirmed. Mr. Harrison 
resigned, and James Iredell, of North Carolina, was appointed in his 
place. 

Edmund Randolph, of Virginia, was appointed Attorney-General. 

The first session of the Court was held in the city of New York, in 
February, 1790; present. Chief Justice Jay, and Justices Cushing, Wil¬ 
son and Blair. 

Judge Rutledge did not take his seat, but resigned the next year, 
and Ihomas Johnston, of Maryland, was appointed Noveml^er 9, 1791, in 
his place. 

Very little business was transacted at the first term, except the adop¬ 
tion of rules of the Court for process and admission of attorneys to the 
bar. The first Chief Justice, John Jay, was one of, if not the most 
distinguished lawyer and judge of his time. At the time of his appoint¬ 
ment, he was not quite forty-four years old, and had practiced law, filled 
positions on the bench and high public offices for twenty two years. An 
important event in his life cannot be too strongly recommended to all 
young lawyers. At the beginning of his professional career, he was an 
active member of a Moot Club formed by the young lawyers of New 
York, at which legal questions were discussed with all the interest of real 
cases. From that club emanated such lawyers as Jay, Chancellor Living¬ 
ston, Judge Duane, Gouverneur Morris, Peter Van Schaick, Bevans, and 
many others. He was one of the Committee of Fifty in New York in 
1774, to consult on measures proper to be taken in consequence of the 
conduct of Great Britain toward the Colonies, and the report from his 
pen recommended the Congress of Deputies for the thirteen colonies, 
which resulted in the Congress at Philadelphia, September 5, 1774, of 
which he was a member in his twenty ninth year; and he was placed on 
a committee and drafted the address to Great Britain. He was on the 
committee which reported the necessity of the colonists to take up arms; 
on an address to the people of Canada, Jamaica and Ireland ; a member 


4 


OHIO STATE J'.AR ASSOOIA'lTON. 


of the Colonial Convention of New Vork ; of the Constitutional Conven¬ 
tion of New York; and mainly drafted her first constitution, which 
existed for fifty years. On the organization of the courts under it, he 
was appointed the first Chief Justice of the Supreme Court. 

Between the adjournment of the conventions and the organization of 
the new State government, he was a member of the Council of Safety, to 
whose hands was committed the absolute sovereignty of the State. 

Re appointed Chief Justice in 1777, he held his first court at Kings¬ 
ton, when the large army of Rurgoyne was approaching Albany, and his 
act was regarded as treason by the British, but with true courage he took 
his seat, and charged the grand jury to enforce the principles of the new 
constitution and laws thereunder. 

While holding the office of Chief Justice he was elected to Congress, 
and three days after taking his seat was elected president of that body. 
In I 779 > was appointed to the Spanish Mission to act in conjunction 
with the trench Ministei to draw Spam into the confederacy against 
(rreat Biitain. He found Spain willing to aid us, but as a consideration 
she wished us to surrender to her the right to navigate the Mississippi 
river. This Jay peremptorily declined, saying, “ Poor as we are, yet as I 
know we .shall be rich, I would rather agree with them to buy at a great 
price the whole of their right on the Mi.ssissippi, than .sell a drop of its 
waters. A neighbor might as well ask me to sell my street door.” 

Spain, therefore, refused to honor drafts of our government, and Jay 
himself accepted all drafts to the amount of $238,000. F'ranklin made 
arrangement to have them paid, and wrote to fay to return, saying, 
“Spain has taken four years to consider whether she would treat with us 
or not. Give her forty^ and let us, in the niecintifne, mind our 07un businessd' 

He was next appointed, with h^'ranklin, Adams, Jefferson and Lau¬ 
rens, on a commission to negotiate a treaty of peace with Great Britain. 

The appointment was distasteful to him, as he was instructed to 
undertake nothing without the coun.sel and concurrence of France, and 
to govern himself by the advice and opinion of the Minister of P'rance. 
He, however, went to Paris when the preliminary articles of peace were 
signed, November 29, 1782, the draft of which was in his own hand¬ 
writing. 

Returning to New York, February 24, 1784, Congress appointed him 
Secretary of foreign affairs, and New York elected him to Congress. In 
company with Hamilton and Madison, he. wrote and published The Fed- 
erahst, that most important instrument in the vindication and adoption of 
the new constitution. He continued to act as Secretary of foreign affairs 
until appointed Chief Justice of the U. S. Supreme Court. 

While Chief Justice, he was, in April, 1794, appointed Minister to 






UNITED STATES SUPREME COURT. 


5 


England, which he accepted without vacating his seat on the bench, but 
never afterward officiated as Judge. 

He participated in a treaty with England, known as Jay's treaty, 
which became a great subject of criticism, for which he was severely 
denounced by Pinckney, Rutledge, and other prominent public men, and 
Jay was most bitterly assailed. Then there was talk of bringing him to 
the guilotine. His effigy was paraded through the streets, labeled, 
“ Come up to my price and I will sell you my country,” and it, with a 
copy of the obnoxious treaty, was burned in front of his house. Jeffer- 
^ son, in one of his letters, called him rogue of a pilot, who had run the 
vessel of state into the enemy’s port.” And Hamilton was burned in 
effigy for sustaining Jay. But after careful examination, Washington 
signed the treaty, and it went into effect. 

While in England, Jay was elected Governor of New York, and 
resigned the Chief Justiceship, and was again elected Governor, his term 
ending on July i, i8oi. He declined a renomination, and was appointed 
Chief Justice of the United States, by John xAdams, and confirmed by the 
Senate. In tendering him this. President Adams wrote : “ It appeared 

to me that Providence had thrown in my way an opportunity, not only of 
marking to the public the spot where, in my opinion, the greatest mass of 
worth remained collected in one individual, but of furnishing my country 
with the best security its inhabitants afforded against the increasing dis¬ 
solution of morals.” 

Rut Jay declined it, and removed to his vseat at Bedford, fifty miles 
from New York, where in the tranquility of his home he lived till his 
death, in 1829. When he thus retired he was but fifty-six years old, but 
what a busy and useful life! 

At home, surrounded by his family, he was on the 14th of May, 1829, 
attacked with palsy, and died in three days after, in the .eighty-fourth 
year of his age. 

When Jay resigned the Chief Justiceship, in 1795, Washington 
appointed in his place another most prominent and remarkable man, John 
Rutledge, of South Carolina. He u^as characterized by his biographer 
“ as at once the Adams-and Patrick Henry of South Carolina, chief among 
the South Carolina leaders, first in station, in influence and talent, amid 
the brilliant galaxy of patriots who adorn the revolutionary annals of his 
State.” He received the best education afforded in his State, and began 
the practice of law at twenty-two, and' by his precocious brilliancy rose 
with a bound to the top of his profession. He was a born lawyer. His 
knowledge of principles was profound, his appreciation of details accurate 
and immense. 

He was born in South Carolina, in 1739, tlie oldest of seven children. 




6 


OHIO S'l'ATK l!AR ASSOCIA'l'ION. 


the.youngest of which, Edward Rutledge, was one of the signers of the 
Declaration of Independence. 

With Ciadsden and Lynch he was elected, in his twenty-sixth year, 
to represent South Carolina in the (General Congress, which met in New 
York October 25, 1765. There he evinced, it is said, one of those firm 
and unyieldy tempers “which opposition and resistance serve only to 
strengthen.” His eye was never accustomed to look back, nor his foot to 
retrograde. From that day down to the close of the struggle he was 
the firm, vigorous and uncompromising champion of the rights of the 
colonies ; always in advance of the popular movement; always the advo¬ 
cate of the boldest measures, and always the formidable opponent of the 
royal authority. 

In 1774, with Edward Rutledge, Henry Middleton, Christopher 
Cadsden and Thomas Lynch, he was appointed to meet the delegates of 
the colonies in General Congress. In the convention, when they were 
appointed, it was sought to pledge the delegates to the support of their 
colony to the Bostonians in resisting England. Rutledge, in tones of 
burning eloquence, resisted this, and demanded that he and the other 
delegates go untrammeled . In the midst of his speech an opponent de¬ 
manded : “What shall be done with the delegates if they betray their 
constituents, and pledge the colony to a course inconsistent with the pub¬ 
lic interest?” Rutledge turned on him, and, with a passionate gesture 
and an eye flashing indignation, exclaimed, ^'•Hang them! hang them ! " 
The delegates were not pledged, and history records that none of them 
betrayed their trust. 

Patrick Henry said of that Congress: “If you speak of eloquence, 
John Rutledge, of South Carolina, is the greatest orator; he shone with 
supreme luster. If you speak of information and sound judgment. 
Colonel Washington is unquestionably the greatest man on the door.” 

He was returned to Congress in 1775. 

A new constitution for South Carolina was adojited in 1776, and Rut¬ 
ledge was a prominent member of the convention, and he was chosen 
President of the first general assembly, and it made his younger brother, 
Hugh, Admiralty Judge. 

He was president and commander-in-chief when Fort Moultrie was 
attacked by the British. General Lee said it was a slaughter pen, and 
advised Rutledge to abandon it. Rutledge replied, “While a soldier 
remained alive to defend it he would never give his sanction to such an 
order.” “ Well,” replied Lee, “ they will knock your fort about your 
head in half an hour.” Lee wished Moultrie to evacuate the fort. Rut¬ 
ledge wrote him: “You will not evacuate it without an order from me. 
I would sooner cut off my head than write one. J. Rutledge.” 


UNITKI) STATES SUPREME COUK'l'. 


7 


L)o not ])e too free with your cannon. Keep cool and do fnischiefj" 

During most of the Revolutionary struggle he was Governor and 
Commander-in-Chief of the State, and for a time himself and his council 
were clothed with absolute dictatorship, and although the Americans 
were often defeated, and he was driven by the British from South Caro¬ 
lina, he never despaired, but continued to rally and inspire with hope all 
around him, until the arrival of General Green resulted in the liberation 
of South Carolina. General Green, in testifying to the character of Rut¬ 
ledge, says he “ was aided by the influence of Governor Rutledge, who 
is one of the first characters I ever met with.” 

His term of Governor having expired, he was elected a member of 
Congress, and took his seat May 2, 1782. He was at once placed on the 
most important committees, and especially to visit and address the States 
on the condition of public affairs. He served in Congress till 1783. In 
1784, he was elected Judge of the South Carolina Court of Chancery, 
which he held until 1791, when he was elected Chief Justice of the Su¬ 
preme Court of Judicature of the State. 

While he was one of the Chancellors of South Carolina, and without 
resigning his position, he served as a delegate from South Carolina in the 
convention to frame the Constitution of the United States, and he and 
Robert Morris conducted General Washington to the chair when he was 
elected President; and he was an active and influential member, both on 
committees and in debate. 

He received the unanimous vote of South Carolina for Vice President, 
with Washington for President. 

In the appointment by Washington of Judges of the Supreme 
Court, his name was next after Jay, and he was unanimously confirmed. 
He resigned his seat on the Supreme Bench in 1791, and Thomas 
Johnson, of Maryland, succeeded him. 

Rutledge opposed bitterly the treaty made by Jay with England, 
which excited much enmity to him ; but this did not seem to offend 
Washington, who, on the resignation of Jay as Chief Justice, immediately, 
July I, 1795, appointed him as his successor, and wrote him a highly 
complimentary letter from Philadelphia, desiring him to be in that city 
by the first .Monday in August. He accepted the appointment, and held 
court in Philadelphia at the time stated. But a tremendous fire was 
made at him for his opposition to Jay’s treaty, and he was attacked in the 
most violent manner in public and private and through the newspapers. 
He was called “ a drwcler and a fooip' '•'■the country was ruined and dis¬ 
graced'’' by his appointment; his private character was attacked, and he was 
told “ to save hvnself from disgrace by declining it." Language was used 
too gross to be repeated. He was defended with equal zeal by his friends, 












8 


OHIO STATE BAR ASSOCIATION. 


John Marshall wrote: He is a gentleman of great taUnts and decision 

and vigor.” 

Washington was not ahected by the opposition to him, but invited 
him to dine at his house, and on the opening of Congress sent in his 
name to the Senate for confirmation, but on the 15th of December, 1795, 
the Senate, by a small majority, refused to confirm the nomination. 

But while his nomination was yet pending, that brilliant intellect 
was fast giving way. Scarcely had news of his rejection been announced 
when it was learned that he had become insane, the result of disease 
incurred by many years’ exposure in the service of his country in the 
swampy districts of his State, when it was overrun by the British. Just 
before his rejection a renewed attack prostrated him on his way to hold 
Circuit Court in North Carolina, This was conveyed by letter December 
I. The remainder of his life was a blank, with l>oth body and ,mind 
wrecked. He died in the Summer of 1800, aged sixty-one years, and 
was buried in St. Michael’s churchyard in Charleston. 

Soon after the rejection of the domination of Judge Rutledge, Wash¬ 
ington sent in for Chief Justice the name of Patrick Henry, who declined, 
and then he appointed Judge William Cushing, the senior Judge in com¬ 
mission then sitting in the Court. The nomination was at once unani¬ 
mously confirmed, but he preferred the less prominent post of an asso¬ 
ciate. It is said that Judge Cushing received the first intimation 
of the appointment at a diplomatic dinner, when Washington bowed 
to him in a stately manner, and pointing to a vacant chair said, 
“The Chief Justice of the United States will please take the seat at my 
right.” Pie held the office for about a week, though Washington urged 
him to keep it, and then resigned. 

At the time of his appointment he was sixty-four years of age. 
Judge'Cushing was a graduate of Harvard College, and the son and 
grandson of Judges of the Supreme Court of Massachusetts, and his great 
grandfather was also a Judge. His first position was Probate Judge of 
Lincoln county, and he, on the retirement of his father, after twenty- 
eight years’ service, was appointed to fill his place in the Supreme 
Court. He presided most of the time #at the State convention to ratify 
the U. S. Constitution. After Jay’s departure for Pingland in 1794, he 
presided in the Supreme Court in his place. He was a man of remarka¬ 
bly strong and clear mind, great ability and learning, and profoundly 
read in the law, as well as history and literature. He died September 13, 
1810, in the seventy-ninth year of his age. 

On the resignation of Judge Cushing, Oliver Ellsworth was appointed 
Chief Justice. His commission was dated March 4, 1796, and he took 
his seat on the 8th. At the time he was appointed he was Senator in 


UNITED STATES SUPREME COURT. 


9 


Congress from the State of Connecticut, and liad voted against the con* 
firmation of judge Rutledge as Chief justice. 

fie was not less renowned than his predecessors. Born in Connecti¬ 
cut, April 29, i 745 > seventeen years old he entered Yale College, but 
left that and graduated at Princeton, in 1766. Admitted to the Bar at 
twenty-three, he began the practice at Hartford. He rose rapidly in high 
estimation, and had a lucrative practice. He was appointed State’s 
Attoiney for tlie district of Hartford, and held it during the Revolution¬ 
ary War. He also represented his town in the general assembly. In 
1778, he was elected to Congress, and abandoned, it is said, the most 
lucrative practice in Connecticut. His colleague was Roger Sherman. 
He was appointed a member of the Committee of Appeals, composed of 
the l)est lawyers in Congress, whose duties were entirely judicial, to hear 
and determine cases of appeal from sentences of courts of admiralty. 
He remained a member of Congress until July ii, 1783. The journal of 
C ongress during these times shows that he was an exceedingly active and 
useful member. He was again chosen, but declined to serve. The next 
year Congress appointed him Commissioner of the Board of Treasury, 
This he also declined. 

He was a member of the Supreme Court of Errors of Connecticut— 
1784—the next year a judge of the Supreme Court, and for several 
years afterward. In 1787 he was aj)pointed, with Roger Sherman and 
William Samuel Johnson, a delegate to the convention to form a plan 
for a federal government. Here his influence was felt in a ])Owerful way. 
He took a strong part in favor of sustaining the power of smaller States 
against the larger, insisted that unless those rights were fully preserved 
the goverfiment 7Vottld be nothing more than a rope of sand. And we are 
indebted to him that each State has an equality of representation in the 
Senate. The discussion on this subject was long and earnest by the 
ablest minds of the convention, and foiuns the most interesting pages in 
the second volume of the Madison Papers. He opposed giving the 
power to the President to nominate Judges, insisting that the Senate 
should nominate, giving a negative to the President. 

His name does not appear to the constitution, as he was absent from 
the convention the last month, ])ut he highly approved it and recom¬ 
mended its adoption in the convention of Connecticut to ratify it, of 
which he was a member. On the adoption of the constitution, he and 
William Samuel Johnson were chosen the first Senators to represent 
Connecticut in the Congress. He was one of the eight Senators who met 
at the time fixed, March 4, 1789, in f ederal Hall, New York, to start 
the new government in operation, and wailed patiently until the 6th of 





lO 


OHIO STATE EAR ASSOCIATION. 


April for a <[uorum. lie remained a mem])er of that l)ody for sevne 
years. 

He M’as appointed chairman of the Senate committee to bring in a 
“ bill to organize the judiciary of the United States.” He was assigned 
to the greater part of the work, and the bill as reported, was from his j)en. 
He was in the Senate the warm approver of the jay treaty, and this drew 
down on him the animosity of the opposition. Wolcott, in a letter to 
Hamilton, exclaims : A druu'ler and a fool appointed chiefjustice''’ “ P'action 
is to be counted at so great a sacrifice of consistency f cried another. Another 
calls on the Senate “to stand firm and correct the President’s error of 
judgment by rejecting him.” But his appointment was confirmed at 
once by the Senate with unanimity. 

At the same time he took his seat on the bench Samuel Chase also 
took his as an assistant. 

Chief Justice Ellsworth occupied the bench till November, 1799, 
when having been appointed February 27, 1799, envoy to France, he 
proceeded on his mission as Jay had done before, without resigning his 
seat, but he held his last term of Court in August of that year. 

With his colleagues he succeeded in making a formal treaty with 
France, and then resigned his commission as Judge and returned, and 
although in feeble health, he was in 1801 called by Connecticut among 
the assistants of her council and ex-officers. Judge of the Supreme Court 
of Errors, a position which he had resigned eighteen years before. He 
was appointed Chief Justice, but declined to serve on account of ill- 
health. After a severe illness of eight days, he died November 26, 1S07, 
aged sixty-three years. 

Judge James Wilson, of Pennsylvania, one of the first associates, was 
a native of Scotland, who emigrated to Philadelphia in his twenty-first 
year. He was a distinguished scholar, professor of law in the Philadel¬ 
phia College, an active participant in the revolutionary struggle, a 
member of Congress during part of the Revolutionary War, and one of 
the signers of the Declaration of Independence, and an influential member 
of the constitutional convention. He occupied a seat on the bench till 
1798, when he died at the house of his friend and colleague. Judge 
Iredell, at Edenton, N. C., while on a judicial circuit in that State, and 
is buried by the side of Judge Iredell. He was succeeded by Bushrod 
Washington, a nephew of Ceneral Washington, who had studied law 
under Judge Wilson, and who took his seat in F'ebruary, 1799. Judge 
Patterson, of New Jersey, retained his seat till his death in 1806, when he 
was succeeded by Brockholst Livingston, of New York. 

Thus ended the career of the original Supreme Court, appointed 
previously to 1800. But here I must stop. Important as had been the 






UNITED S'l'A'l'ES SUPREME COURT, 


([uestions before that Court, and distinguished and truly great as were 
almost all its members, it was really in a formative state in public 
estimation until the appointment of John Marshall as Chief Justice. On 
the resignation of Chief Justice Ellsworth, President Adams nominated 
John Marshal!, of Virginia, who was commissioned January 31, 1801, 
age forty-six, and took his seat on the bench in February of that year. 
The only remaining member of the Court appointed by Washington was 
Wilham Cushing, of Massachusetts; the other members were William 


I’atterson, of New Jersey, Samuel Chase, of Maryland, Bushrod Wash- 
ington, of Virginia, and Alfred xMoore, of North Carolina, appointed to 
hll the vacancy by the death of Judge Iredell. The long career of John 
Marshall of thirty-four years as Chief Justice, dying in 1835, at the ageof 
eighty years, is the history of his country, the elucidation and crystaliza- 
tion of the principles of the constitution in language so clear and 
classical, and logic so irresistible as to place him at the head of those 
wise and learned Judges, who have from the earliest time been the 
preservers of human rights. 









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Stehcl;) es o|^ bl;)^ Supreipe Coiirb bl)(> 

Upibed Sbabe^ 

lu the Time of Chief Jiistiee Joliu Marshttll, from 1801 to 1885. 


PART II. 


For the purpose of interesting the legal profession and the pul)lic in 
the celebration of the one hundredth anniversary of the organization of 
the Supreme Court of the United States, proposed to be held in the City 
of New York on the 4th of February last, I wrote an article on the subject 
which was published in the Cincinnati Daily Commercial Gazette, and 
subsequently in the Weekly Laiv Bulletin, oi Columbus, February 5, 1890. 
That article was a brief sketch of the organization of the Court and 
the Judges down to the appointment and commission, January 31, 1801, 
of John Marshall, of Virginia, as Chief Justice, leaving the Court to 
consist of him as Chief, and as associates, William Cushing, of Massa¬ 
chusetts, William Patterson, of New Jersey, Samuel Chase, of Maryland, 
Bushrod Washington, of Virginia, and Alfred Moore, of North Carolina. 
A number of the members of the Association Mdio became interested in 
the subject of the article suggested that I continue it to the present 
time, in a paper to be read before this Association. 

In attempting this, I found that it led into so extensive a range of 
historical reading as to give me but faint hope of doing so to the satis¬ 
faction of myself or the Association, with the multiplied other duties 
incumbent on me. No one who attempts it but will be astonished at the 
numerous facts and fancies which crop out in historical researches. 

Like the explorations and deep sea soundings of our coast surveys, 
one is constantly bringing up to the surface strange specimens, which 
interest and amuse, but at the same time defy all scientific knowledge to 
analyze or classify. In matters relying entirely on past history, I cannot 
claim originality, but only an effort correctly to summarize important 
events recorded by others; nor will the magnitude of the subject permit 





OHIO S'I'ATE HAR ASSOCIATtoK\ 


1 


me to bring it down to the present, as suggested. I can only sketch briefly 
some important events in the life and Chief Justiceship of lohn Marshall 
and some of his associates, referring those who desire to pursue the 
subject to the very interesting sketch of the life of the Chief Justice by 
Judge Joseph Story, to the “ Life and Letters of Judge Story,” by his 
son, where he has given most vivid sketches of his contemporary judges, 
to Van Santvoord's lives of the Chief Justices, to Marshall's Life of 
Washington, the writings of Jefferson, especially the Ana, and his life bv 
Kayner, a 7 .'ery interesting series of articles in the second and third volumes 
of Southern Law Revietv New Series, entitled “The Dartmouth College 
Cases,” to Conway’s life of Attorney-General Edmund Randolph and to 
the United States Supreme Court reports from Cranch to the present, to 
Judge Hoadley’s address at Cincinnati on the life of Chief Justice Salmon 
P. Chase, and to the eloquent address by Mr. Baker on the life of Chief 
Justice Morrison R. Waite, in the proceedings of this Association for 1888, 
to the life of Judge John McLean in the iVational Portrait Gallery," A'oah 
H. Swayne and Stanley Matthe^os in the Biographical Encyclopedia of 
Ohio, and to Aloses Coil Tyler's life of Patrick Henry. These will afford 
most interesting readings. In reading the inner workings of the govern¬ 
ment and lives of prominent characters who have come down to us in history 
jnagnified by some great event or deed, one will be surprised to find how 
many petty jealousies in great minds, personal rancors, dark intrigues 
and selfish aspirations, history in its general statements has covered over, 
in order to make the personnel of the act stand out in a supreme and 
commanding light. And looking around at ^the men of his own times 
and comparing them with those of the past, one will be convinced of the 
truth of a statement which the venerable Scotchman, Dr. Bishop, Presi¬ 
dent of Miami University, was wont to enforce frequently on the students 
of that institution, that “ human nature was the same in all ages of the 
world, and the average man of two thousand years ago was an exact 
counterpart of the average man of today.” In the appointments which 
Washington made of the members of the Supreme Court he was con¬ 
tinually hampered with these obstacles. And nearly every appointment 
M as subjected to some criticism. W’hile all acknowledged that these 
men had been conspicuous for ability and ])alrioti.sm, not only in their 
own respective States but also in the General Go^ernment, yet in the 
temper of the times, and division of political sentiment, their very 
prominent positions and high talents made them the more signal objects 
for attack. 

Not only so, but the Government was new, the Court unorganized, 
the principles of the Comstitution contested, and it was a difficult matter 
to obtain lanyeis of sufficient ability M’ho n'ere willing to relinquish good 





SKETCHES OF THE SUPREME COURT OK THE U. S 


<■) 

piactices in oider to take the position with its moderate salary, and 
apparently hopeless prospect of obtaining reputation in it. During the 
whole of Washington’s administration he was handicapped by the con¬ 
tentions of his Cabinet. Between jetterson, Secretary of State, Hamil¬ 
ton, of the lieasury, and Randolph, Attorney-Cieneral, there was, to say 
the least, a want of unity of feeling and of views, which kept each alert, 
watching the movements of the other. The Anas'' of Jefferson and 
the personal history of each, illustrates that, and shows that not only was 
there bitter opposition to the appoii;tees of Washington, and that, revered 
as his name is now, he was abused then without stint, in language even 
worse than now applied in heated political canvasses. 

Jefferson, on retiring from the Cabinet in 1793, drew it very mildly as 
compared to others when he wrote of Washington, who was then but 
st.xty-oneyears Q){ age, “.His memory was already sensibly impaired by 
age, the firm tone of mind for which he had been remarkable was 
beginning to relax, its energy was abated ; a listlessness of labor, a 
desire for tramjuility had crept over him, and a willingness to let others 
act and even think for him,” and charges him with writing letters to 
Adams and Carroll “ over which, in devotion to his imperishable fame, 
we must forever weep, as monuments of mortal decay.”. 

Judges were no more spared then than now. He charged John Jay, 
whom Washington appointed Chief Justice, as being “a Rogue of a 
Pilot who had run the vessel of State into the enemy’s port.” By others, 
Jay was denounced as a “driveler and a fool, and the country was ruined 
and disgraced by his appointment.” 

The administration of Washington was bitterly attacked in a paper 
edited by a Frenchman, and. these articles were charged to have been 
from the pen of Jefferson. To the.se were most able and caustic replies, 
which were attributed to John Marshall, then at the head of the Bar of 
Virginia, and a strong personal and political friend of Washington. 
This led to a bitter feud between Jefferson and Marshall, which ended 
only with their lives. Marshall supported Aaron Burr for President, 
putting his preference for Burr upon the ground “that the morals and 
principles of even Aaron Burr were purer than tho.se of Jefferson.” 

Jeffer.son at 81 wrote: “ Judge Marshall makes history descend from 
its dignity, and the ermine from its sanctity, to exaggerate, to record and 
to sanction a forgery,” and Marshall eight years later tired a parting 
volley at the ashes of his dead antagonist. 

d'hey were both of Welsh extraction, tirm and ardent in their 
affections and hates, but neither given to enduring hatred. “ Jefferson 
forgave all but Marshall; Marshall spared the world his enmity and 
lavished it on Jefferson.” Neither ever forgave or spoke to the other. 


4 


OHIO STATE BAR ASSOCIATION. 


And so between Jefferson and Patrick Henry. He charged that 
Henry was a mere declaimer, a man of no education, no lawyer, had no 
business as such, but that for the first four years in which he pretended 
to practice, kept the bar of his father-in-law’s tavern and lived on him. 
While history, and the letters and papers and account books of Henry 
show that not only was he a speaker of unapproachable elo(|uence, but a 
man of fine business (jualihcations and common sense, and in the four 
years in which Jefferson charged he had no legal business, the number of 
cases in which he appeared in various courts was over 1300, while that 
of Jefferson was less than 500, and that out of his practice Henry paid 
mortgages on his father’s home and purchased a handsome estate for 
himself. On the rejection of Judge Rutledge as Chief Justice, Wash¬ 
ington tendered it to Patrick Henry, who declined it. It was tendered 
by Washington because he had great regard for his ability, and because 
he wished his powerful aid in support of the Covernment. He had 
before that tendered him in succession the position of Attorney- 
General, Secretary of State, Minister to England, all of which he declined 
for the double reason, first, that he had strongly opposed the adoption of 
the Federal Constitution, and although willing to render support and 
obedience to it, had determined not to hold office under it, and because 
his practice at the Bar was very large, he had amassed a large fortune, 
and had determined not again to enter politics. Thereupon Jefferson 
sneeringly wrote that “ Washington had tried to draw Henry into his 
camp by offering him every position he knew he wouldn’t accept.” But 
Henry had for a number of years been a member of. the General Assembly 
of Virginia, had drawn the first protest of the Colonies against the Stamp 
Act, had been with Peyton Randolph, George Washington, Richard 
Bland, Benjamin Harrison and Edmund Pendleton (the first minds of 
Virginia), member of Congress at its first meeting at Carpenter Hall in 
1774, and again in 1775, and was appointed Commissioner of Indian 
affairs; the confidential friend of John Adams, who regarded him as 
the ablest man on the floor ; had been Governor of Virginia five times, 
the first under the Colonial rule, and unanimously re-elected the sixth 
time, but declined it and retired from official life, until elected a member 
of the Convention of Virginia called to ratify the Federal Constitution. 
Rut after all these tenders of high position and refusals, his patriotism 
could not refuse the final request of Washington, to become a candidate 
for the Legislature of Virginia, in order to thwart the designs of certain 
prominent men there, who >ought to bring the power of the State to 
oppose acts of the General (rovernment. He became a candidate for 
this, canvassed the district and spoke eloquently in favor of standing by 
and supporting the General Government; was elected, but died before 
taking his seat. 




5 


SKETCHES OF 'THE SUPREME COURT OF THE U. S 


It IS a strange and yet sad thing to look over these rancors and 
jealousies of distinguished men in the organization of the government. 

It IS a very common remark that the Judiciary of the States should 
not be elected by the people, but appointed by the Governor in the same 
manner as the Judges of the Supreme Court of the United States are 
appointed by the President. Hut the history of that Court proves that 
all the appointees were of the same political party as the appointing 

power, and none of them would have been appointed had he held 
opposite views. 

John Marshall was of the party of Washington and Adams-a 
kederahst, believed in the Federal Constitution, and the Government 
organized under it, and his appointment by John Adams in i8oi as Chief 
Justice of the Supreme Court was the most fortunate and proper one 
which could have been made, although he had much opposition and 
many enemies. His appointment was urged by John Quincy Adams, son 
of the President, who when it was made, said, “ if neither of us had ever 
done anything else to deserve the approbation of our country and of 
posterity, I would proudly claim it of both, for the act of my father and 
myself.” 

His life has been grandly sketched by Justice Joseph Story, who sat 
on the bench of the Supreme Court with him for twenty-four years. It 
should be read i 7 i extenso by every lawyer. 1 can init give a brief 
synopsis. His grandfather was a native of Wales, who settled in West¬ 
moreland County, Virginia, in 1730, and married Elizabeth Markham, a 
native of England. His eldest son, Thomas, removed to Fau(,uier 
County, Virginia, and was employed by George Washington in survey¬ 
ing the extensive lands of Lord Fairfax in the western part of Virginia. 
They had been near neighbors from birth, associates from boyhood and 
always friends. JoJm Marshall was the son of Thomas, and the eldest of 
a family of fifteen children, and was born at Germantown, Fauquier 
County, Virginia, September 24, 1755. Shortly after his birth his 
father removed to near the Blue Ridge, a country of grand beauty and 
renowned for its healthfulness. Here John remained till his fourteenth 
year. He evinced most surprising love for learning. *His father’s house 
contained the books of Milton, Shakespeare, Dryden, Pope and the 
piincipal classics, and it is said that at the age of twelve he had 
transcribed all of Hope’s Essay on Man and committed to memory many of 
its most interesting passages. During life he retained this love for poetry 
and general literature. At fourteen he was placed under the tuition of a 
clergyman named Campbell, and had for a fellow student lames Monroe, 
afterwarcls President of the United States. He remained here a year' 
and then continued classical studies another year with Mr. Thompson, a 







6 


OHIO STA'l'E J!AR ASSOCIATION. 


Scotch clergyman. He never graduated at college. He was eighteen 
years old when the stirring contest between Hreat Britain and the 
Colonies began, and his first appearance after the intelligence of the 
battle of Lexington, was as Lieutenant of a militia company in Fauquier 
County. His captain being unable to be present, Marshall walked ten 
miles to the place of rendezvous, announced to them that he had come to 
meet them as fellow soldiers who were likely to be called upon to defend 
the country and their own rights, invaded by the British, that there had 
been a battle between the Americans and British at Lexington, the 
Americans being victorious, but that more fighting was expected, that 
soldiers were called for, and it was time to brighten their fire-arms and 
learn to use them in the field ; and if they would fall in line, he would 
put them through the new manual. He is described at that time as 
“about six feet high, straight and rather slender, showing little if any 
rosy red, yet good health, the outlines of his face nearly a circle, and 
within that, eyes dark to blackness, strong and penetrating, beaming 
with intelligence, and good nature ; an upright forehead, rather low, was 
terminated in a horizontal line by a mass of raven black hair of unusual 
thickness and strength. The body and limbs indicating agility rather 
than strength, in which, however, he was by no means deficient. He 
wore a purple, or pale blue hunting shirt, and trousers of the same 
material, fringed with white ; a round black hat, mounted with a buck’s 
tail for a cockade, crowned the figure and the man.” He drilled the 
men, addressed them for an hour on their duty to the country, challenged 
an acquaintance to a game of quoits, closed the day with foot-racing and 
other exercises, and then walked back the ten miles to his father’s house. 
When (leneral Washington took command of the American Army in the 
Revolution, Thomas Marshall went with him as Colonel of the Third 
Virginia Regiment, and his son John as Lieutenant of a comiiany, and 
was promoted to a Captaincy. Both served under the immediate orders 
of Washington during the darkest days of the country. They were in 
the first battle on the soil of Virginia ; at battles of Monmouth, Brandy¬ 
wine, Morristown, Germantown ; during that terrible Winter at Valley 
Forge, and supporting Wayne in his charge at Stony Point. When the 
Army was in Winter quarters he applied with renewed diligence to the 
study of the law, and in the year 1780 attended the law lectures of 
Chancellor \Vythe at William and Mary’s College and was admitted to 
the practice of the law, but again returned to the Army and remained in 
it till the surrender of Cornwallis and the close of hostilities, when he 
began the practice and soon rose to distinction at the Bar in Richmond, 
Virginia. He was elected to the Legislature repeatedly, to the convention 
called to ratify the Constitutiori of the United States, where he dis- 


SKKTCHES of I hE SlJPREJviK COUR'J' oi' I'HE u. s 


7 


linguished himself by the strength of his argument in supporting it. As 
a lawyer, he stood at the head of the Bar and was employed on one side or 
the other in almost every important case in Virginia, and in that State was 
lecognized as the leader of the Federal party, which was the party which' 
supported the Constitution of the United States. Washington tendered 
him the position of Attorney-General of the United States, and also of 
Minister to France, but he declined both, as it would interfere with his 
extensive law practice. He subsequently, at the urgent request of Presi¬ 
dent Adams, accepted the mission to France in an important epoch of 
both countries. Invited by Washington to Mt. Vernon and at his urgent 
request, he and Bushrod Washington were elected to Congress from 
Virginia to assist in arresting the swelling tide of opposition to the 
Government. On arriving at Philadelphia, the seat of government, he 
writes, “ A Virginian who supported with any sort of reputation the 
measures of the government was such a rara avis that I was received 
with a degree of kindness which I had not anticipated.” President 
Adams tendered him a place on the Supreme Court made vacant by the 
death of Judge Iredell, of North Carolina, but he declined it. In 
Congress he distinguished himself on several important occasions by his 
consummate judicial arguments. One of his most celebrated speeches 
written out by himself will be found in a note to Bees Reports, page 
266, also in the appendix to fifth Wheaton’s Report, and in Wharton’s 
State Trials, page 443. 

President Adams appointed him Secretary of War and subseijuently 
Secretary of State, both of which he filled. Appointed by President 
Adams Chief Justice, he was commissioned on the 31st of January 
1801, and took his seat in February. The Court had beenUn existence-f-> 
eleven years, but as yet had not been one of great importance, as in that 
time less than one hundred cases had been heard. Its minutes covered 
about two hundred pages, and its reported decisions but five hundred 
pages of Dallas’ Reports. The Reports of all the Courts of America to 
that time scarcely numbered a dozen volumes. The reported decisions 
of all the Circuit and District Courts of the United States filled only two 
hundred pages of Dallas’ Reports. 

In this condition of the Court, Marshall took his seat as Chief 
Justice. The nation was the first in the world to be governed by a 
written Constitution, and this Constitution and the laws made in 
pursuance of it were to be passed upon by this Court. 

Marshall took no part in forming the Constitution, except that as a 
member of the Virginia Convention he urged its adoption by that State, 
but for the term of his judicial life that Constitution was made what he 
saw fit to make it, by the decision of that Court of last resort. 





8 


OHIO STATE ]?AR ASSOCIA'i'ION. 


With Story, the greatest of his associates, it was said the test in all 
cases was “ the policy of the law is so and so ; ” Marshall would say, “ I 
have not looked into the cases, but I think the law ought io be so and so,” 
or as Story put it, “while I am compelled to creep from point to head¬ 
land, Marshall puts out to sea.'' The first volume of Cranch’s Report 
contains the work of two years, reporting twenty-five cases, all but one 
from the pen of Marshall. Among them is the celebrated case of 
Marbury w. Madison, in which for the first time it was decided “ that it 
was the duty of the Judiciary to decide an act of the Legislative body 
invalid, if clearly repugnant to the Constitution ”—a decision which at 
that time was reached after great consideration, elaborately prepared, 
and received with different judgments of its correctness by many of the 
ablest men of the Nation. It is very remarkable at the present time, that 
there should have been a doubt as to the correctness of such a decision, 
under a Constitution which defined the power of the Court as extending 
to all cases in law and equity, etc., arising under the Constitution and 
laws of the United States, and which provided that the Constitution and 
the laws made in pursuance thereof, etc., shall l)e the supreme law of the 
land; and the Judges in every State shall be bound thereby, anything 
in the Constitution or laws of any State to the contrary notwithstanding. It 
seemed certainly very clear that while the Legislative body was clothed 
with authority to enact laws, the fiuestion as to whether they were made 
in pursuance to the Constitution was one to be finally fletermined by the 
Judiciary. Still more remarkable is it, that in our own State, in the 
Legislature of 1807-1808, a resolution was introduced to impeach Calvin 
Pease, Presiding Judge of the Third Circuit Common Pleas, and Judges 
Huntington and Tod, a majority of the Judges of the Supreme Court, 
who had decided that an act passed by the Legislature was void as being 
in violation of the Constitution of the United States. 

Before the next session Judge Huntington was elected Governor, and 
resigned his seat in the Supreme Court. The impeachment, however, 
was not dropped, but at the succeeding session a committee was 
appointed to inquire into the official conduct of Messrs. Huntington, 
Tod and Pease, which reported articles of impeachment against Tod and 
Pease, but not against Huntington. 

The charge against Pease was for deciding an act of the Legislature 
unconstitutional, and against Tod, that he, as a Judge of the Supreme 
Court, affirmed the same doctrine. In his answer. Judge Tod admitted 
that he had so decided, and was of the same opinion now, and asserted 
it as his right and duty to determine cases brought before him as Judge 
according to the conviction of his judgment, and vindicated the purity 
of his motives and the uprightness of his judicial conduct. The trial 




SRETCHKS of J’HE supreme court of the u. s. 


9 


continued several days, but resulted in his acquittal. Hut the I .egislature, 
still determined on a victim, brought Judge Pease to trial. 11 is answer 
was sul)stantially the same as that of judge Tod. I le also was acquitted, 
but on one of the charges it was a close vote, 15 being for conviction ami 
9 for acquittal; but as it required a two-thirds vote to convict, he escaped 
by one vote. As to the right of a Judge to so decide, the vote stood 18 
for and 8 against. 

Judge Vea.se was sulise.iuently elected Judge of the Supreme Court 
of the State, and for many years adorned it with great ability and 
learning; and thus the sober second thought vindicated the integrity of 
the Judges and the correctness of the decision they gave, and the 
doctrine they held has remained not only unquestioned to this day, but 
affirmed by repeated decisions of all our Courts. It will be impossible 
within the limits of this paper to go into any extended statement of the 
many great cases decided by the Supreme Court while being presided 
over by Chief Justice Marshall. They emlirace almost every question 
which could arise in the formation of a great country under a new 
fundamental law, and he was emphatically “ the expounder of the Constitu¬ 
tion.''' These most important (piestions were argued before him by the 
most eloquent and learned lawyers of the time, among which may be 
mentioned Webster, Pinkney, Wirt, Dexter, Sergeant, Binney, Clay, 

1 aney, Mai tin, Wickham and Mason, and his decisions established prin¬ 
ciples which are accepted today as undoubted law. Thirteen hundred 
cases were disposed of by the Court during his term, and for years he 
piepared the larger share of the opinions. His enemies declared that in 
some of them he was not as careful as a discreet fudge ought to be to 
find out whether his opinions were those of the majority or the minority 
of the Court, and Jeflerson in a letter to Ritchie, of June 25, 1820, said 
of him, “ an opinion is huddled up in conclave, and with the silent 
acciuiescence of lazy or timid associates, by a crafty Chief Judge, who 
sophisticates them to his mind by the turn of his own reasoning.” To judge 
how unjust was this charge against the courage and industry of his 
associates, one has only to glance at the array of distinguished judges 
who sat with him during these years. 

William Cushing, of Massachusetts, was on the Bench from 1789 to 1810 


William Paterson, of New Jersey, 
Samuel Chase, of Maryland, 

Bushrod Washington, of Virginia, 
Alfred Moore, of North Carolina, 
William Johnson, of South Carolina, 
Brockholst Livingston, of New York, 
Phomas Todd, of Kentucky, 


1793 to 1806 
1796 to 1811 

1798 to 1829 

1799 to 1804 
1804 to 1834 

1806 to 1823 

1807 tP 1^26 


ohIo stat1>: I!Ar associA i'io^f. 


i o 


Joseph Story, of Massachusetts, was on the Bench from 1811 to 1845 
Oabriel Duvall, of Maryland, “ “ 1811 to 1835 

Smith 'Thompson, of New York, “ “ 1823 to 1845 

Robert Trimble, of Kentucky, “ “ 1826 to 1829 

John McLean, of Ohio, “ “ 1829 to 1861 

Henry Baldwin, of Bennsylvania, “ “ 1830 to 1846 

None of these, his associates, were men who would silently accjuiesce 
in decisions which would nc?/ reflect their views, nor were any of them so 
lazy or timid as to sit silently by and permit a “crafty Chief Judge to 
sophisticate the law to his own mind.” And an examination of the 
reports will develop very many dissents, and separate expressions of 
opinion on different points. 

Brief sketches of the lives of these associates will convince the most 
skeptical that they had been well chosen, not only for their well tested 
ability in former important public positions, but also for their integrity 
and un(|uestioned patriotism, and sustained their reputation well on the 
Bench. 

Williatn Cushing, of Massachusetts, was a graduate of Harvard 
College, practiced law successfully for a number of years, first a Judge 
of Probate. His father had held the office of Judge of the Superior 
Court for twenty-eight years, and on his resignation, William was 
appointed to fill his place and was the only member of the Court who in 
the trying Revolutionary times adhered to the American side and was 
made Chief Justice of the Supreme Court, which he filled for fourteen 
years. Elected a meinl)er of the Convention to revise the laws of his 
State, the bill of rights of which declared that “’u-// men are born free and 
eijualf he held in a charge to the jury that this, in entirely abolished 

slavery, and thus it came to an end in Massachusetts. 

lie was Vice President of the Convention of his State to ratify the 
Federal Constitution, presided most of the time, and voted for its 
adoption. On the organization of the Supreme Court of the United 
States, in 1789, he was appointed by Washington a Judge next to the 
Chief Justice, and presided as Chief during the absence of Chief justice 
Jay as Minister to England, and, upon Jay’s resignation in 1796, was 
appointed in his place by W’ashington and unanimously confirmed by the 
Senate. He held the office for one week and resigned, preferring to sit 
as associate ; Washington reluctantly accepted it, but would not appoint 
any one over him. He remained on the Bench till his'death, in 1810. 
He possessed a remarkably strong and clear mind, of great ability, pro¬ 
foundly read in the law, of unbending firmness and integrity, which 
inspired universal confidence. 

William of New Jersey, was on the Bench thirteen years, 



skktches Of the supreme COUK'r ok the u. s. 


11 


Ihat he would be appointed to (1 Mi '^lieved 

suited by Presiden Ad being con- 

objected Lc::::" i:i:ier™T;‘'^^ 

Judge Cushing, who was the senio” ,„d'e "'."'h""' 

Before ids appointment, judge Patersoi h ''’'''o’''- 

I'rovincial Congress of New |erserof ,1 ' , " c“ 

years and also of the Convention wh ’ R ^ ’-’"'lea Slates Congress six 

U-Ued States, a ^'tt, Strl: X " 7 "^““"’’ 

of the committee which drafted the JudiciL Billr 
Crovernor of New lersev Fifv . ■ ‘ ^ ^ ‘'li^terwards 

vacancy occasioned by the death 7 

tegarded as ttndoui edM^n o h ^'i / 

i>egan practice in Annapolis Tnr77H i to the Ijar, and 

Congress, re-electe,l in tE, L of 77 c" "'^'" 7 ^ 

Independence, remained in Congress till '177 Cl '7 T 
Criminal Court of Baltimore, and hi 1701 Chilf 1 

Court of Maryland. He was of snn , ' .fustice of the Sujjreme 

undisguised, independent in language^^nVlcr**^'''^"^’ Fearless, 

and unswervable in his purposes / 1 
elements of his mind are of the very 

manners, in un wielding strength in severity m 

of heart, and above aiil in intllleVt, 7 7 Ihe t'ET 7, 7“' 
exact image of Samuel Johnson ; I like him h i^elvH '' 

Sons of i.iberty, who in Maryland forcibly Etid atui rr'’'7'7 
newly .mported stamps of the British Government and burned'lreffil*' 

pohttcal opponents who strove to drive him from the Bench In iXo 
John Randolph procured the passage of a resolution in the llou 7 7 
Representatives imiuiring into his official conduct This re nit l ■ 
arttclesof impeach,.,en, being p,.efe„ed against hi,„;„n.i ,hc , i 77 J 
the Senate was pressed with the greatest vindictiveness. The prinlinll 
charge aga,ns. htm was one which, under the rulings of our CoZ fo 
many years, would seem almost incre.lible as the fountlation for an im- 



OHIO STATE T.AR ASSOCIATION. 


I 2 


peachment. It was that “he refused to permit eminent counsel to argue the 
law to the jury in a criminal case, informing them that they could argue 
the facts, but that the Court would give them the law.” The counsel be¬ 
came highly indignant and left the court room, when the Judge informed 
them that he could attend to the interest of their client in their absence 
and he would be as well defended as if they were present. The trial 
lasted before the United States Senate from January 2, 1805, till March, 
when not sufficient votes could be obtained against him for a conviction, 
lie remained on the Bench till his death in June, 1811, but his liery 
temperament had cooled and he lost much of his power. 

Bnshrod Washington, of Virginia, was the favorite nephew of General 
Washington, ])eing the son of his eldest brother, John A. Washington. 
Educated partly under a private tutor, he completed his studies at 
William and Mary’s College, Virginia, where he l)ecame ac([uainted with 
John Marshall, between whom grew a friendship which lasted till death. 
He served under General Lafayette when Cornwallis invaded Virginia, 
and the following winter went to Philadelphia and studied law under 
Judge James Wilson, whom General Washington pronounced the best 
lawyer in America. Returning to Virginia, he was elected a member of 
the Legislature and served in the Convention which ratified the Federal 
Constitution. He reported two volumes of decisions of the Supreme 
Court of Virginia, and was a prominent and accurate lawyer. He was 
appointed Judge of the Supreme Court by President Adams in 1798, and 
served till his death in 1829, more than 30 years. General Washington 
made him one of the executors under his will, devised to him Mount 
N’ernon, and into his possession came all the private papers of the 
General. These he turned over to Chief justice Marshall, and from them 
he wrote his admirable life of Washington. His remains were deposited 
in the same vault with those of the General. Judge Story writes, “ his 
mind was solid, rather than brilliant, sagacious and searching, patient in 
inquiry, forcible in conception, clear in reasoning ; the fear of man never 
fell on litni, the love of justice loas his ruling passion, the master spring of all 
his action." 

()f Alfred Moore, of North Carolina, very little is known. He was 
appointed to fill the vacancy made by the death of Judge Iredell, at the 
close of 1799! •‘emained on the Bench but a few years, and was succeeded 
by 

William Johnson, of South Carolina, who was born in 1771, graduated 
at Princeton ('ollege, studied law under C. C. Pinckney, and admitted to 
the Bar at the age of twenty-two. Three times elected member of the 
Legislature, the last time speaker; retiring from political life he became- 
Judge of the Circuit Court, and in 1804 Mas appointed by President |ef- 



■'Kktches of the supreme court of the 


u. s. 


I ^ 


Person judp-e of the Tf < 

■earning, bn. Jncige s'.o; sTidTh'. considerable 

ness, as if be were confLed a!.d n„ in exact, 

salisfactorily to himself.” He was th f'" together 

days of nnllilication in his .State ' H of Union men i„ the 

>834. ™ ‘he Bench till his death in 

Brockho/st Livingston, of New 

Livingston brothers. Born in ,7,7 he T“ celebrated 

America in the Revolutionary smL,e “ 1 “ “ '’e'talf of 

and successful advocate at the Bar of Ne’w Ymr H'' “ B™'"inent 

«hola,, an ingenious and learned lawyer. He' accomplished 

the Supreme Court of \ew \'orI- a l was one of the Judges of 

till .806 (when this Court was acknoIr'l r"’]') T'lompson 

when he was appointed fudge ofthe Unk"/s' '^"’cHca), 

where he remained till his lath in \f L •'■“B>cme Court, 

Judge, he ranked very hiehlv boil ’ n ‘^As a 
was succeeded by ^ anil Fe.leral Courts. He 

Smith IViompson, who had sat wifi, u- 
^ew York. He took his .seat in 1821 and h”l ‘ Court of 
and his numerous opinions in the published 1 " "'r '^‘'8’ 

character given of him while on the Bench of'dl'l"''^'”"’ 

Thomas Todd, of Kentucky, was born in 7 • 

emigr^ited to Kentucky in 1786. He .on o m 1765, and 

and M-as appointed Clerk of the Federal Courr 

the State was chosen Clerk of ihf^ r and after the creation of 

or the Court of Appeals, and L "chtf ^ 

to the United States Supreme Court w.as made hv left' ' 

the delejrates in Congress from the circuit to , ^ on requesting 

•‘'Ccond choice. He was the first n- . 1 ’^ame to him their first and 

was accordingly appointed in 1807 ^anT^ ^ delegate, and 

His learningLsofa solid cast 
questions, clearness of juclgme^U 

opinions. He was not excelled in’ h* i adherence to his 

Kentucky, and was regaX I '' ^ocal law^s of 

Judges. He was succTde^ bellow 

Robert Trimble, of Kentucky, \vho died after t 
appointment. He had been ^ r 1 r 1 ^ ^ ^*‘oua his 

tRcky. declined the posUh^ ^{(I fn 

devoted his time entirely to tl ' Bench and 

Adam.s ,0 the United States Suplm“rt'''“i'le"''‘’°‘r'' 

» able and discriminating Judge and d, inn h "'‘'j'"t' '^w, 

*11...,. ...cl '..ji;:,"::-:,: 


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OHIO STA'l'E liAR ASSOCIATION. 


tucky. His opinions were clear and comprehensive and enriched by a 
vast fund of learning. He was succeeded by 

John McLean, of Ohio, March 7, 1829. He was the descendant of 
an Irishman who had emigrated to America before the M ar of Independ¬ 
ence, and was born March ii, 1785, on a small farm in Morris County, 
New Jersey. When four years old his father removed to Morgantown, 
Virginia, then in a year to near Nicholasville, Kentucky, and in two 
years after, to Mayslick, where he resided till i 797 j when he removed to 
Ohio. John went to such schools as he could hnd in the neighborhood 
when he could spare time from work, as the family was very poor. He 
was strong and hearty, cleared land for the neighboring farmers, and 
earned good wages for that time. At eighteen he was employed in a 
subordinate position in the Clerk’s office of Hamilton County, joined a 
debating society and studied law under Arthur St. Clair, son of General 
and Governor St. Clair, who was then one of the ablest lawyers in the 
Territory. Admitted to the Bar in 1807, he established himself in 
Lebanon, Ohio, where he soon succeeded in obtaining a lucrative prac¬ 
tice. Elected to Congress in 1812 by a large majority, and re-elected in 
1815. In 1816 elected Judge of the Supreme Court of Ohio, where he 
served six years till appointed by President Monroe, in 1822, Commis¬ 
sioner of the General Land Office. So well did he fulfill the duties of 
this office that the President, in 1823, appointed him Postmaster-General, 
which he held the balance of his term. He made a complete revolution 
in that office, and established such a system as placed it in successful 
operation as one of the most important departments of the Government. 
When General Jackson succeeded to the Presidency, he desired Judge 
McLean to retain his department, but he declined. He then tendered 
him the Secretaryship of War and the Navy, but he declined both. He 
appointed him to the Bench of the United States Supreme Court, which 
he accepted. Judge McLean was a man of most magnificent presence, 
with a massive head and classic outline of features. He was about six 
feet four inches tall, broad of chest and strong limbed. He was in 
personal appearance the most dignified and majestic personage who ever 
sat on the Bench. Of pure and incorruptible integrity, high Christian 
character, great patience, studious habits, he brought to the Bench a 
dignity and character comparable with its high position. In addition 
to his decisions in the General Reports of the C'ourt, he jniblished 
several volumes under the title of ^‘■McLean's Reports.'’"' He remained 
on the Bench thirty-two years, till his death in 1861. 

Joseph Story, of Massachusetts, was appointed in i8n, and remained 
till his death in 1845. He was born at Marblehead, Massachusetts, 
September 18, 1779, graduated at Harvard College in 1798, studied law 




practice; "'emW of“t UgTstoi'reTr '’" *’"2“ '’’e 

'vhmh he was appointed l,y President Court, to 

- Saletn his practice was "ui THn i era::; 

success. Complained greaUy of his o ''"^Poadent of 

'"ews ile was a Republican or I)em:ct, a^^ 

''■'d Judges in the County rvere Fede.;, , T"”’ “A"‘I'e lawyers 

obu uded upon it as a pomicaTheLtt S’ n " “ 
aud l.terary character of the State ^ t'l eivil 

almost came to the conctio: oTe 

Southern city more congenial with some other 

^Ji<^erent persons for that purpose But ^°^'^-osponded with 

persevered at the law till Appointed ludr "t Salem and 

Cn.ted States at the age of th^ty-two yeafs 

was made by a mere accident fud„ r n- “PP»"'>ment, it is said, 

was claimed Ws successor should be from Ma'"® 

very timited, nobody thought of Jud^ sr ‘'"'’S" 

Levi Lincoln, who had been Jefferson’s An appointed 

■Secretary of State, l>ut he was comnelled , rActing 

creeping on him. He then apnointed j” lalmdness 

declined for the reason wh^h he" gr.r;;; Adams, and he 

not judicial and he preferred to re:- n- 'ustes and mind were 

'‘"‘e-burg... In L ZITT “ ^'"“--dor to St. 

from Mas.sachusetts, suggested the na’ Zr “ “^“'’e'- of ‘he House, 
of everybody he was ::r ^Olhesurpris: 

November ii, i8ri. fudge Storv wa his seat 

scholarly Judgewho ever sat on that HenZ a7l M T‘ 

was untiring in gathering from every il o ll; , 
acquisitions were really marvellous In i . ''"“'v'edge, so that his 

bench he drew many of the mos: addition to his labors on the 

on law and on sciei,;:! tljZZ Congress, lectured 

and sketches upon almost ali'.^iblec: i" , ".ssays 

references to the Roman laws and of all nat 
profession, and all have, or should'read n""’ 

"Con/lirl of ''■s ,i„ 

, “ Jurisprudence," <■ Partnerthii, " \Z‘ “ ^‘luHy," and 

published by his son give us insight ,T ' ' voluminous letters 

He examined every question if t e 

learning and authority upon it and wh "'"'"“"'‘ed all 

bowever miici: h^ ma; h^e'II^re^: ^ ^ 







OHIO STATE BAR ASSOCIATION. 


I 6 


had the courage to announce and act upon it with a firmness which few 
men possess. 

Gabriel Duval, of Maryland, was appointed by President Madison in 
i8ii, in place of Judge Samuel Chase. He had long been known as an 
eminent lawyer of that State, was Associate Judge of the Cieneral Court 
of that State for six years, Comptroller of the Treasury of the United 
States, and afterwards Chief Judge of the County Courts, Chancellor, 
and Judge of the Court of Appeals of Maryland. He sat on the Pencil 
until the fifteenth of March, 1826, when he resigned on account of the 
infirmities of age. President Jackson appointed as his successor Roger 
B. Taney, of Maryland, but the Senate at the last moment of its session 
indefinitely postponed the matter, which was understood as a rejection, 
and he then appointed Philip P. Barbour, who was confirmed and took 
his seat. 

Henry Bald^oin, of Pennsylvania, was on the sixth of June, 1829, 
nominated by 1 ‘resident Jackson to fill the vacancy occasioned by the 
death of Bushrod Washington and was confirmed by the Senate, the two 
Senators from South Carolina alone voting against him on account of 
his well known views in favor of a protective tarift'. 

Judge Baldwin was born in New Haven, Connecticut, in 1779, and 
graduated at Yale College in 1797, having as classmates Chief Justice 
Williams, Roger M. Sherman and Professor Silliman. He was dis¬ 
tinguished there for great force of character, and left with a high 
reputation for scholarship, industry and integrity. He studied law with 
A. J. Dallas, at Philadelphia, and on admission to the Bar settled at 
Meadville, I’ennsylvania, but ere long increasing business drew him to 
Pittsburgh, as a larger sphere for his abilities. Here he rose rapidly, 
although under very adverse circumstances. He was a new man among 
many competitors. His social and personal habits, then none of the best, 
and his convivial associates, very indiscriminate in character, drew much 
comment on him. After fighting a duel u ith a brother lawyer who had 
styled him “ Caliban," he found himself at last recognized as one of the 
leaders of the Bar. He was an untirieg student, slept but little, and 
was so completely absorbed in his profession that it is said there were 
but few topics on which he could not present the authorities by name 
and volume. 

Tn 1817 he was elected to Congress by a large majority and continued 
for three terms. He was a strong protective tariff advocate, and his 
report and speech on that subject in 1820 ranked among the most 
effective efforts in that body. His seat in Congress was, however, like 
that of many others, a poor investment pecuniarily. He had been 
largely engaged in the rising manufacturing interest of Pittsburgh, and 






SKETCHKS of 'I'HE SUPRE 


ME COERT OF THE U. 


S. 


i» extensive purchase of lands and i 

e-aused these interests to be neglected and heT^ absence in Congress 
which was a matter of b ecieti and he became heavily involved 

He was one of Prlh 37 

and it was supposed that he wo7(Tbe\^^^* ardent supporters, 

the death of Judge Washington occ\lm 777 e''''' 

position which was more aereeabl. i i ^ ‘'"PP^'^ted to that 

- new duties witirgreft i^nl-;; u': 

tiousness, but his great fosses in bns-^’ . industry and conscien- 

his latter years were clouded bv 
April, 1844. at I'hiladelX'a afll 7 tTT '7 
was,” said Chief Justice Taney, - ruUof\hl T^ Paralysis. “ 1 ,e 
ingly familiar with its records\nd l • • the law, strik- 

modern times.” I'he Fedenl *l « ‘ am-ient .i.s well as in 

trilmte to his .Jea l^ar .m , -'ani.nity 

Pennsylvania La:,. Journal Ll ‘•'m-ac er may be found in Vol. 6, 
of the Supreme Com t of ut' 

The greatest and 1 , '<'P"'t. 

Justice Marshall was the triaUf A j“tl'cial career of Chief 

states Court a. K.c^lVrNn^.^rL ""C ''' ‘'’e, 

the passions and political nreindi r i ^ ^ m which 

Marshail was scanned with Snt’enL''i',Lre“r'’Tr‘'l ^T'^" 

I: 5 urr had filled in the connf,- fi ’ position which 

magnificent array of counsel o 7 Mfo 7 i^"slTes'" 3 rt^ 7 fc 7 h''‘" 

Mason and others the wpII 1 -no • ’ 'ckham, Martin, 

s^Liicis, lue veil knoM'n anxieiv of <1,^ _ i • • . 

conviction, the animositv pvic- i ^ ^ administration for his 

■ended to clothe it :uh^,::::?; - 

trial said, “ it was a co-on ^ A wiiter present at the 

...1.»i. 'T.t' 

pressure which counsel dared to 

that end, but the important record of hLtor°yTs’'trat’''"' “ 

of legal skill was ever witnessed in our Ian I ’ ‘ “P'''-'' 

evidence of judicial knowledge and rectitud greater 

all ll,e e^dteu.cnt :oere held :ailh an ahsolutely „.en hand 7,tr 

Knemies of Marshall during the frif,f'^ t ^"^H^itted. 

:rr, - 

.. .h. .o., ..p 





OHIO S'I’A'I'E I!AR ASSOCIA'l'ION. 


i8 


that his name would go down to posterity with loathing and disgust. 1 
have u full file of the trial published from day to day in the “ Aurora^" a 
newspaper published in Philadelphia, which exhibits this intense hatred 
of him in editorials and communications nearly every day during the 
trial, f rom the issue of April 14, 1807, I (piote the following, taken from 
the Virginia published at Richmond. “ It is reported, and we are 

sorry to say that the fact appears indisputable, that Colonel Aaron P>urr 
and the Chief Justice of the United .States dined together at Mr. W ick- 
harn’s since his examination, and since His Honor had himself decided 
solemnly that there were probable grounds to believe him guilty of a 
high misdemeanor against the United States.” “ We are astonished that 
Mr. Marshall did not perceive the extreme indelicacy and impropriety 
of such respect being paid him by the judge who is to sit hereafter in 
his trial.” 

At this dinner Burr is said to have offered the toast “ To the Union 
of all honest menU bhe editor adds, “ who this alludes to the editor can 
not say, but it must be one of the party.” 

On the seventeenth of same month appear columns of the same 
character. It says Burr’s “bail in $5,000 were Thomas Taylor, son-in- 
la70 to/ohn Broion, prh'ate secretary to Judge Marshall during his mission 
to France, and John ( 1 . Gamble, a member of his family on the same 
memorable occasion.” “I can find no reason why the Chief Justice of 
the United .States should pollute the ermine of justice by coming into 
contact with an acknowledged criminal. Does he think it will console 
the last hours of Aaron Burr should he unfortunately be compelled to 
pronounce the awful sentence of death on him to address him in these 
words —1 have partaken of the rites of hosj^itality with you—I sympa¬ 
thized in your sufferings, it now remains for me to ymss the sentence of 
the law, or is it, that spurning the opinion of the public, and disregard¬ 
ful of his office, and weary of the long protracted indulgence or patience 
of his country, he is at length determined to thro 7 v off the mask and avow 
himself the open supporter of an expiring faction.” 

Again, “a Judge may blunder certainly on the Bench, may know 
nothing of the law, or by his aristocratic or monarchical opinions may 
pervert what he knows, to the ruin of his employers, the peopleU 

“So great is the sanctity of Judge, we are told that nothing can 
injure it but aetual villainy.''' 

That these attacks were not unnoticed by him may be strongly read 
in the latter part of his charge to the jury, in which he said, “ That this 
Court dares not usurp power is most true, that it dares not shrink from its 
duty is no less true. No man is desirous of becoming the peculiar subject 
of calumny. No man, might he let the bitter cup pass from him without 



SKETCHES ni 


I' the supreme court oe the u. s. 


19 


e case, .f theie be no alternative inesenletl to him but a dereliction of 
. uty o, the opprobr.um of those wj.o are denominated the 7^0,M he 

embalmed his name as the greatest'and wisest j„dgra'rd hi[ ,iecision,''have 
P seived the Constitution from nearly a hundred yeais of assault These 
ecisions and the great work in which he labored with a loving heart 
■The Ltfe of will defend him aga.nst all atta^kt which 

ate been o, may be made against him. When seventy.fonr years of age 

Vn-Imia ri’sao'' '', 7 ''"' °'''’^ Convention torevksethe Constit.ttio,; of 
fervor on two question! ‘!!L‘'.!a!t'o7 

‘ a\eit, sii, he sajd, “to the duties of a ludsre ” “He tr. 
between the government and the man whom that'governmetit is pro^ 
ecuting, between the most powerful individual in the community and 
the poorest and most unpopular.” ^ ^ 

“ The judicial department comes home in its eflects to every man’s 
.reside; It passes on his property, his reputation, his life. Is it not to 
the last degree important that he should be renderetl perfectly and com¬ 
pletely independent, with nothing to control him but Cod and his 
nscence. have always thought from my earlies't youti, till now that 

g.eate.st scourge an angry Heaven ever inflicted upon an ungrateful 
people was an ignorant, a corrupt, or a dependent jutiiciary.” 

He presided for the last time in the Supreme Court in theression of 
j 5, then in his 80th year. He had outlived all the lodges who sat 
with him the tirst ten years of his service. 

Shortly after, his health failed, and on .advice of his physician he 
was taken to Philadelphia by his three sons for treatment. Here he 
lingered till the sisth of July, 1835, when conscious of his aiiproaching 
end, with his faculties unimpaired to the last, he expired. Hi! remains 
were borne back to Richmond, Virginia, and there interred. At the 
opening of the ne.xt session of the Court a most eloquent and impressive 
eulogy was paid to him by Henry Clay, and most affectionately responded 
to by Judge .Story, the senior Judge who had occupied the bench with 
ini 24 yeai.s. I his Hall, lie said, “ tyill never again be honored by 
IS presence. But so long as it remains devoted to the administration of 
public justice, so long will it preserve the.best records of his fame He 
who in future ages shall here seek for his monument need but look 
around and before him. The voice of the elocptent and the learned, 








20 


OHIO STA'J'K 1!AR ASSOCIATION. 


which will here pronounce his name, Avill never fail to breathe forth at 
the same time his most effective j)raise.” ^ 

These statements were responded to by the Mar of every State, but 
in none more elo([uently or appropriately than by that of Charleston, 
South Carolina, in which it declared that “ I'hough his authority as Chief 
Justice of the Cnited .States was protracted far beyond the ordinary term 
of ijublic life, //o mon dared to co'oet his place or express a 70 ish to see 7 tfilled 
by another. Even the sj^irit of party respected the unsullied purity of 
the Judge, and the fame of the Chief Justice has justified the wisdom of 
the Constitution and reconciled the jealousy of freedom to the independence of 
the /udicia)')'.'’ 

On the loth of May, 1884, a bronze statue to his memory, the work 
of the son of his great friend Story, was unveiled near the west front of 
the Capitol at Washington. The funds for it had been contributed half 
by the Bar of Philadelphia and Richmond, Virgiivia, and the other by 
Congress. 

The ceremony took place in presence of both Houses of Congress, 
the chief officers of the (Government, the descendants of the Chief Justice 
and a large concourse of citizens. Addresses most appropriate were 
delivered by Hon. William 11 . Rawlins, of Philadelphia, and by Chief 
Justice Waite, of this State, who in character and ability was one of his 
most fitly chosen successors, and who for fourteen years with great 
talent, integrity and spotless purity adorned the Bench, until in the 
language of Mr. Baker (his life-long neighbor, who so fittingly read his 
biography to this Association in 1888,) “ the rhythm of his richly rounded 
life was complete, and in the early hours of the morning of March 23, 
1888, he peacefully passed to the life beyond.” 

Well may the study of these lives in detail be commendetl to all, to 
presidents and all rulers, to judges and lawyers and people of every 
vocation in life, for they are the incentives, the inspirations to toil on 
and up, heeding neither toil, nor poverty, nor contumely, for these but 
.strengthen and bring victory to him who, conscious of his own rectitude, 
strives to perform his duly as Cod gives him to see that duty. 














